NLRB General Counsel Richard Griffin formally concluded earlier this week that scholarship football players at private universities and colleges are employees under the National Labor Relations Act, with the rights and protections of that Act. In a General Counsel Memorandum, Griffin seemed to invite these players at private institutions to begin organizing (football players at public universities are not within the NLRB’s jurisdiction because they are subject to state – and not federal – labor laws). In 2015, the NLRB declined to assert jurisdiction over the Northwestern University football team’s petition to unionize. Griffin noted in his memo that the Board, however, did not decide the key question of whether college football players were employees. In a well-reasoned analysis, Griffin heavily relied on the Board’s guidance in the 2016 Columbia University decision to determine that they satisfied the definition of an employee under the Act.

The General Counsel’s conclusion is not binding on the NLRB, and it is also unlikely to have long-term implications. Under President Trump, the NLRB will flip to a majority of Republican members who are less sympathetic to organized labor. Moreover, Griffin’s term will end in November, and President Trump will select a new General Counsel to replace the President Obama-appointee. Griffin’s determination, however, highlights that the issue regarding the employment status of college football players remains unsettled.

The complete version of Memorandum GC 17-01 can be found here.